S11 Rules

Rules

[KKW Note: These are excerpts. Many conditions, exceptions, subrules, etc. are not included.]

Rule: Florida Sunshine Law
[KKW Note: statute also has health information rules which might be used for enhanced scenario]
- Rule: Master Rule
  - Short form:
    - Anyone may access any state, county, or municipal record.
    - Anyone may copy any state, county, or municipal record.
  - Original Text: "It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency."
  - Citation: 119.01(1) Florida Statutes
  - SubRule: Digital Records
    - Short form:
      - The Master Rule includes digital records.
        
        Exception: Exempt or confidential records must not be disclosed
        
        Exception: Except as permitted by law
        
        Exception: Not if access would be unreasonable.
      - Original Text: "Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law."
      - Citation: 119.01(2)(a) Florida Statutes
      - [KKW note:
  - SubRule: Release
    - Short form:
      - Custodian of record shall grant access to the record
        
        For inspection or copying
        
        To any person making a request
        
        At any reasonable time
        
        Under reasonable conditions
        
        Under the custodian's supervision
    - Original Text: "Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records."
    - Citation: 119.07(1)(a)
    - [KKW note: there are multiple other explanatory subrules including one that says essentially the same thing for digital records. KKW has not included in an effort to simplify.]
    - Subrules: Exemptions
      - Subrule: Exemption Asserted
        
        Short form:
        
        If an exemption is asserted or applies to part of a record
        
        That part of the record shall be redacted
        
        All else shall be made available
        
        Original text: "A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying."
        
        Citation: 119.071(1)(d) Florida Statutes
      - Subrule: Active Law Enforcement
        
        Short form:
        
        Active criminal intelligence information is exempt from [SubRule: Release]
        
        Active criminal investigative information is exempt from [SubRule: Release]
        
        Original text: "Active criminal intelligence information and active criminal investigative information are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution."
        
        Citation: 119.071(2)(c)1 Florida Statutes
        
        Subrule: Law Enforcement Request
        
        Short form:
        
        Any information about a law enforcement agency request for a public record is exempt from [subrule: Release]
        
        Original text: "A request made by a law enforcement agency to inspect or copy a public record that is in the custody of another agency and the custodian's response to the request, and any information that would identify whether a law enforcement agency has requested or received that public record are exempt from s. 119.07(1)"
        
        Citation: 119.071(c)2.a.
        
        Subrule: Exemption Expiration
        
        Short form:
        
        This exemption expires
        
        when the information is no longer active
        
        The requesting law enforcement agency must provide notice when not active
        
        Original Text: "The law enforcement agency that made the request to inspect or copy a public record shall give notice to the custodial agency when the criminal intelligence information or criminal investigative information is no longer active so that the request made by the law enforcement agency, the custodian's response to the request, and information that would identify whether the law enforcement agency had requested or received that public record are available to the public."
        
        Citation: 119.071(c)2.b.
        
        [KKW Note: this rule might be used for Scenario 11B]
      - Subrule: Accept Other Agency Rule
        
        Short form:
        
        If the source of criminal intelligence information or criminal investigative information is "other criminal justice agency"
        
        "Other criminal justice agency" is
        
        agency not headquartered in Florida
        
        agency is "criminal justice agency"
        
        Florida criminal justice agency may comply with other agency access and use rule
        
        if required by other agency
        
        Original text: "Whenever criminal intelligence information or criminal investigative information held by a non-Florida criminal justice agency is available to a Florida criminal justice agency only on a confidential or similarly restricted basis, the Florida criminal justice agency may obtain and use such information in accordance with the conditions imposed by the providing agency."
        
        Citation: 119.071(2)(b)
        
        [KKW note: trying to find a way to define "non-Florida". Didn't say "street address not in Florida" because, for example, FBI has offices in Florida.]
      - Subrule: Motor Vehicle Record
        
        Short Form:
        
        Personal information in a motor vehicle record is exempt from [Subrule: Release]
        
        Personal information is
        
        SSN
        
        Driver ID number
        
        ID card number
        
        Name
        
        Address
        
        Telephone number
        
        Medical or disability information
        
        emergency contact information
        
        [unknown other]
        
        Original Text: Personal information contained in a motor vehicle record that identifies an individual is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution except as provided in this subsection. Personal information includes, but is not limited to, an individual's social security number, driver identification number or identification card number, name, address, telephone number, medical or disability information, and emergency contact information.
        
        Citation: 119.0712(2)(a)
        
        Subrule: Law Enforcement Exception
        
        Short Form:
        
        Personal information in a motor vehicle record may be released
        
        If recipient is a court
        
        if recipient is a law enforcement agency for any authorized purpose
        
        If recipient is a private person or entity acting on behalf of a federal, state, or local agency
        
        for an authorized purpose of the agency
        
        Original Text: "Personal information contained in motor vehicle records made confidential and exempt by this subsection may be released by the department for any of the following uses: ....
        For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a federal, state, or local agency in carrying out its functions."
        
        Citation: 119.0712(2)(b)(2) Florida Statutes
  - Rule: Definitions
    - Subrule: Criminal Justice Agency
      - Short Form:
        
        Criminal justice agency is
        
        law enforcement agency
        
        court
        
        prosecutor
        
        any agency
        
        given law enforcement duties by law
        
        with custody of criminal intelligence information or criminal investigative information
        
        if authorized purpose is assisting law enforcement agencies in active criminal investigation
        
        if authorized purpose is prosecution
      - Original Text: "Criminal justice agency" means: (a) Any law enforcement agency, court, or prosecutor; (b) Any other agency charged by law with criminal law enforcement duties; (c) Any agency having custody of criminal intelligence information or criminal investigative information for the purpose of assisting such law enforcement agencies in the conduct of active criminal investigation or prosecution or for the purpose of litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies are in possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcement duties; or (d) The Department of Corrections."
      - Citation: 119.011(4)
      - [KKW note: Short form is not complete. Only addressing likely subsections for Scenario 11]
    - Subrule: Criminal Intelligence Information
      - Short Form:
        
        Data collected by a criminal justice agency is criminal intelligence information
        
        If the purpose of collection was to anticipate, prevent, or monitor possible criminal activity
        
        If the data is about identifiable person(s)
      - Original Text: "Criminal intelligence information" means information with respect to an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity."
      - Citation: 119.011(3)(a) Florida Statutes
      - [KKW note: I think everything collected by St Lucie PD before a criminal case was opened will fall under this definition]
    - Subrule: Active Criminal Intelligence
      - Short Form:
        
        Criminal Intelligence Information is active
        
        if there is a reasonable, good faith belief that it will lead to detection of ongoing criminal activities
        
        if there is a reasonable, good faith belief that it will lead to detection of reasonably anticipated criminal activities
        
        if it is directly related to pending prosecutions or appeals
      - Original Text: "Criminal intelligence information is considered "active" as long "as it is related to intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of ongoing or reasonably anticipated criminal activities" or "is directly related to pending prosecutions or appeals."
      - Section 119.011(3)(d), F.S.
        
        Subrule: Exemptions
        
        Short Form: Not active if
        
        case is barred from prosecution by any statute of limitations
        
        statute of limitations is 775.15 F.S.
        
        statute of limitations is [unknown other]
        
        Original Text: "The word "active" shall not apply to information in cases which are barred from prosecution under the provisions of s. 775.15 or other statute of limitation."
        
        119.011(3)(d)(2) F.S.
    - Subrule: Criminal Investigative Information
      - Short Form:
        
        Data compilled by a criminal justice agency is criminal investigative information
        
        If the compilation occurred while the agency was conducting a criminal investigation
        
        If the data is about identifiable person(s)
      - Original text: "Criminal investigative information" means information with respect to an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, or any type of surveillance".
      - Citation: 119.0113(b) Florida Statutes
      - [KKW note: I think everything collected by St Lucie PD after a criminal case was opened will fall under this definition]
    - Subrule: Active Criminal Investigative Information
      - Short Form:
        
        Criminal investigative information is active
        
        if it is related to an ongoing investigation
        
        if there is a reasonable good faith anticipation of securing arrest in the foreseeable future
        
        if there is a reasonable good faith anticipation of securing a prosecution in the foreseeable future
        
        if it is directly related to pending prosecution
        
        if it is directly related to a pending appeal
      - Original Text: "Such information is considered "active" as long "as it is related to an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future" or "is directly related to pending prosecutions or appeals."
      - Citation: Section 119.011(3)(d), Florida Statutes
      - Subrule: Exemptions
        
        KKW Short Form: Not active if case is barred from prosecution by any statute of limitations
        
        statute of limitations is 775.15 F.S.
        
        statute of limitations is [unknown other]
        
        Original Text: "The word "active" shall not apply to information in cases which are barred from prosecution under the provisions of s. 775.15 or other statute of limitation."
        
        119.011(3)(d)(2) F.S.
    - Subrule: Definition Exception 1
      - Short Form
        
        If a crime is reported, Criminal Intelligence Information and Criminal Investigative Information do not include the following data items from the report:
        
        (1) time, date, location, and nature of the crime
      - Original Text: "Criminal intelligence information" and "criminal investigative information" shall not include: 1. The time, date, location, and nature of a reported crime.
      - Citation: 119.0113(c) Florida Statutes
      - [KKW note: I think the report by the power plant is not covered by this exemption because the taking of pictures of the plant was not reported as a crime]
    - Subrule: Motor Vehicle Record
      - Short Form:
        
        Motor Vehicle Record is
        
        Motor vehicle operator's permit
        
        Motor vehicle title
        
        Motor vehicle registration
        
        ID card issued by Department of Highway Safety & Motor Vehicles
      - Original Text: "For purposes of this subsection, the term "motor vehicle record" means any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by the Department of Highway Safety and Motor Vehicles."
      - Citation: 119.0712(2) Florida Statutes

Rule: US Privacy Act
[KKW note: assume that Privacy Act rules created for previous scenarios are available]
- Rule: Master Rule
  - Short Form:
    - No federal agency shall release any record in a SOR to any person or agency
      - except if the subject of the record makes a written request
      - except if the subject of the record consents
    - Original Text: No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains
    - Citation: 5 USC 552a(b)
    - Subrule: Exemptions
      - Subrule:FOIA
        
        Short Form:
        
        except if required by FOIA
        
        Original text: required under section 552 of this title
        
        Citation: 5 USC 552a(b)(2)
      - Subrule: Routine Uses
        
        Short Form:
        
        except if permitted by a Routine Use notice
        
        Original Text: "for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section"
        
        Citation: 5 USC 552a(b)(3)
        
        Subrule: Compatability Condition
        
        Short Form: AND use is compatible with the purpose for which the data was collected
        
        Original Text: the term “routine use” means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;
        
        Citation: 5 USC 552a(a)(7)
        
        [KKW note: "compatible with" was addressed in Data Purpose Algebra paper and work]
      - Subrule: Law Enforcement Request
        
        Short Form:
        
        except to any government agency in the United States
        
        under the jurisdiction of the US or a subentity of the US
        [KKW note: trying avoid possibility of a foreign embassy or consulate meeting definition]
        
        for a law enforcement purpose authorized by law
        
        if the head of the agency
        
        requests a particular portion of a record or records
        
        states the law enforcement activity for which requested
        
        Original Text: "to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;"
        
        Citation: 5 USC 552a(b)(7)
    - Subrule: Definitions
      - Subrule: Record
        
        Citation: 5 USC 552a(a)(4)
      - Subrule: SOR
        
        Citation: 5 USC 552a(a)(5)
      - Subrule: Individual
        
        Short Form: Individual is US citizen or US legal permanent resident
        
        Original Text: “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence;
        
        Citation: 5 USC 552a(a)(2)
      - Subrule: Routine Use Notice
        
        Short Form:
        
        Routine use notice must include categories of users and purposes of use
        
        Original Text: "each routine use of the records contained in the system, including the categories of users and the purpose of such use;"
        
        Citation: 5 USC 552a(e)(4)(D)
        
        Subrule: Publication Requirement
        
        Short Form:
        
        Routine use must be published in the Federal Register
        
        When a SOR is created
        
        When a SOR is revised
        
        Original text: "publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include"
        
        Citation: 5 USC 552a(e)(4)

Rule: US FOIA (Freedom of Information Act)
- Rule: Master Rule
  - Short Form:
    - Federal agencies shall make information available to anyone
  - Original Text: "Each agency shall make available to the public information as follows:"
  - Citation: 5 USC 552(a)
  - [KKW Note: the term public is not defined for this statute.]
  - Subrule: Condition 1
    - Short Form: if requestor describes the records
    - Original text: "each agency, upon any request for records which(i) reasonably describes such records and"
    - Citation: 5 USC 552(a)(3)(A)(i)
    - [KKW note: leaving out rules about how and when request must be made]
  - Subrule: Law Enforcement Exception
    - Short Form:
      - Master Rule does not apply if
        
        Records were compiled for law enforcement purposes AND
    - Original Text: '(b) This section does not apply to matters that are--(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information
    - Citation: 5 USC 552(b)(7)
      - Subrule: Conditions
        
        Subrule: A
        
        Short Form: will interfere with enforcement proceedings
        
        Original Text: could reasonably be expected to interfere with enforcement proceedings,
        
        Citation: 5 USC 552(b)(7)(A)
        
        Subrule: Exceptions
        
        Short Form:
        
        The rules don't apply to a record
        
        If a subject of a criminal investigation or proceeding is not aware that it is pending
        
        AND disclosure will likely interfere with the enforcement proceedings
        
        Original Text: "(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and—(A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section."
        
        Citation: 5 USC 552(c)(1)
        
        [KKW note: May use this for Scenario 11C]
        
        Subrule: C
        
        Short Form: will constitute an unwarranted invasion of personal privacy
        
        Original Text: could reasonably be expected to constitute an unwarranted invasion of personal privacy
        
        Citation: 5 USC 552(b)(7)(C)
        
        Subrule: D
        
        Short Form:
        
        will disclose the identity of a confidential source
        
        a cofidential source is
        
        an agency that provided information on the condition of confidentiality
        
        agency includes state agency, local agency, foreign agency or authority, private institution
        
        a person who provided information on the condition of confidentiality
        
        in the course of a criminal investation or a national security intelligence investigation
        
        Original Text; could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (
        
        Citation: 5 USC 552(b)(7)(D)
  - Subrule: National Security Exception
    - Short Form:
      - The rules do not apply to an FBI record
        
        If the record is about international terrorism
        
        AND if the record is classified
    - Original Text: "Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section"
    - Citation: 5 USC 552(c)(3)

K. Krasnow Waterman
8 June 2008